ML20006D767
| ML20006D767 | |
| Person / Time | |
|---|---|
| Site: | Seabrook  |
| Issue date: | 02/08/1990 |
| From: | Backus R, Curran D, Traficonte J BACKUS, MEYER & SOLOMON, HARMON, CURRAN, SPIELBERG & EISENBERG, LLP., MASSACHUSETTS, COMMONWEALTH OF, NEW ENGLAND COALITION ON NUCLEAR POLLUTION, SEACOAST ANTI-POLLUTION LEAGUE |
| To: | NRC COMMISSION (OCM) |
| References | |
| CON-#190-9825 ALAB-924, OL, NUDOCS 9002150037 | |
| Download: ML20006D767 (12) | |
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! 4 DOCKETED tI5NHC UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION l
'90 FEB -9 P3 :43 1
Before the Commission Kenneth M. Carr, Chairman f$((:$;$kMih Thomas M. Roberts, Commissioner iL a Kenneth C. Rogers, Commissioner
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1.
In the Matter of
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Docket Nos. 50-443-OL
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50-444-OL i
PUBLIC SERVICE COMPANY
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3 OF NEW HAMPSHIRE, EI AL.
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(Seabrook Station, Units 1 and 2)
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February 8, 1990
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INTERVENORS' REQUEST FOR AN OPPORTUNITY TO BRIEF ALAD-924 IN THE EVENT THE COMMISSION DECIDES I
TO REVIEW IT AND FOR A HOUSEKEEPING STAY i
i The Massachusetts Attorney General, the Seacoast Anti-Pollution League and the New England Coalition on Nuclear f
Pollution'(the "Intervenors") request that in the event the I
commission decides to grant Applicants' Petition for Review of ALAB-924 the Intervenors be given an opportunity to file briefs
.in support of the correctness of ALAB-924.
Filing this request at this time is-prompted by the following representations made by the Staff and the Applicants in pleadings served on February 1, 1990 and filed with the Smith Board:
1.
Commenting on the various pleadings presently pending l
in this proceeding before this commission, the Staff asserted:
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Much of the parties' immediately (sic) effectiveness comments and other filings in response to the commission's.
November 16, 1989 Order focused on the correctness of ALAB-924 and whether the Licensing Board's treatment of the ALAB-924 romand issues in LBP-89-32 and LBP-89-33 was appropriate.
NRC Staff's February 1 Further Response to January 11 (Smith)
Board Order, at 2 (emphasis supplied).
2.
Similarly,.the Applicants stated:
The portions.of ALAB-924 remanding four issues to the Licensing Board for further consideration are presently on appeal to the commission.
It was and remains the Aeolicants' nositon, as exoressed in their Petition for Review thereof, that ALAB-924 was in error and should be reversed as to those issues.
A ruling by the Commission on that petition may wholly eliminate any further need for this Board to address these matters in any way.
- Thus, Applicants respectfully suggest, the Licensing Board may wish to defer further action on the remanded issues until the commission has spoken.
Applicants' Response to Licensing Board Order of January 11, l
1990 at 2 (emphasis in original) (footnote stating that Intervenors "have appealed other portions" of ALAB-924
-omittad).
Intervenors do not want to acquiesce by silence in the Staff's and Applicants' mischaracterization of the present procedural posture of this case.
First, the Commission in its November 16 Order taking
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jurisdiction over Intervenors' November 13 Motion to Revoke away from the Appeal Board gave Intervenors an opportunity to file supplemental briefing based on the then-not-yet available Licensing Board " explanation" of its November 9 licensing authorization.
The Intervenors in their December 1 Supplemental Motion did brief in detail the reasons why the !
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Licensing Board had disobeyed the mandate of ALAB-924.
i However, the Intervenors did not brief and were not given the opportunity to brief the correctness of ALAB-924.1/
By taking jurisdiction over Intervenors' notions for mandatory j
relief, the Commission was stepping into the shoes of the Appeal Board to datermine whether the mandate of ALAB-924 had been violated by the Smith Board.A/
This legal determination i
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Intervenors note that the Applicants in their December 8 f
Response (to the December 1 Motion) at 21 to 32 straightforwardly argue that ALAB-924 was not correctly decided as to the four remanded issues.
Similarly, the Staff in its
. December 12 Response (to the December 1 Motion) at 13-19, 31-33 and 39-43 also directly briefed the correctness of ALAB-924.
This was inappropriate and beyond the scope of the Commission's November 16 Order which only permitted the Staff and the Applicants to-answer the Intervenors' December 1 supplemental pleading.
That pleading, for the reasons set out in the text above, did not in any way argue in support of-the correctness of ALAB-924.
Thus, those pcrtions of the-responses filed by the Staff and Applicants that argued for the reversal of ALAB-924 were not in answer to the December 1 Motion and were s
not authorized pleadings.
In any event, the Commission is aware the Intervenors were expressly foreclosed by the November 16 Order at 3 from filing a reply to the Staff's and Applicants' answers.
Egg NRC Staff's January 30 Response to Intervenors' Motion for Leave to File Supplemental Brief at 2 (arguing that Intervenors' January 16 Motion to Supplement the December 1 Motion should be denied based on the November 16 Order).
Moreover, Intervanors were entitled to assume on l
December 1 that, in the event Commission review of ALAB-924 was granted, they would be given an eaual opportunity to brief the
- issues, 2/
Intervanors earlier had had doubts about the posture in which the Commission would entertain their mandamus petitions.
Egg Intervenors' November 17 Motion for Reconsideration of Commission's November 16 Order at 9-13; Intervenors' December 1 Motion at 6-11; and Emergency Petition for Mandatory' Relief filed December 22, 1989 (D.C. Cir. Docket No. 89-1770) (denied January 3, 1990).
The Commission has stated expressly to the Court of Appeals that it will address the Intervenors' mandamus motions pn the merits.
Egg Petitioners' (Intervenors')
(footnote continued),
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o-t has absolutely nothing whatsoever to Co with the leaal merits or correctnast_nf_ALAB-924!
Instead the issue is whether the letter and spirit of ALAB-924's mandate was disobeyed.
- Thus, Intervenors properly presented no argument in support of ALAB-924.1/
Second, it is simply inaccurate to assert that ALAB-924 is presently "pending on appeal" to this commission.
As the Commission well knows, it has noe granted any of the pending petitions for review of ALAB-924.
Indeed, Intervenors present request for an opportunity to file briefs on the correctness of ALAB-924 is predicated on 10 CFR $2.786(b)(6) which contemplates that oniv uoon the granting of a petition for review will briefs and argument be entertained.
(footnote continued)
January 22, 1990 Response to Respondents' Motion to Supplement Respondants' Opposition to Motion for Expedited Review at 2-4, noting Commission's representations in its January 19 t
supplement based on Chairman Carr's January 18 public l
statements.
2/
Had the mandamus motions remained before H;s Appeal Board it i;s obvious that Intervenors would not have needed to argue the correctness of ALAB-924 to that Board.
In the same vein, the Staff and Applicants' arguments that ALAB-924 was wrongly L
decided would have been treated by the Appeal Board as either:
- 1) untimely petitions for reconsideration of ALAB-924 (Egg 10 CFR 52.771(a)), or 2) arguments on appeal of ALAB-924 appropriately put before-the Commission if and when the Commission grants a petition for review of that decision.
The fact that the Commission instead of the Appeal Board decided to rule on the mandamus motions does not change the legal issues presented by and the scope of appropriate legal argument relevant to those motions.
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Although at this time Intervenors make this request for an opportunity to file briefs in support of ALAB-924 in the event I
Applicants' November 12, 1989 Petition for Review is granted, they want to make very clear that at present the Commission's
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authority to proceed with further merits review in the Seabrook t
case is limited by the present jurisdiction of the Court of Appeals over the NRC's November 9 " final agency action."
Indeed, this request should not be understood as an accession by Intervenors in the present posture of this case to the Commission's further merits review of the correctness of I
ALAB-92 4.
As Intervenors made clear in their January 22 Response to Respondents' Motion to Supplement Respondents' Opposition to Motion for Expedited Review, based on representations made by the Commission to the Court of Appeals, they have acceded to further merits disposition by the Commission only on issues encompassed by their December 22 Emergency Petition for t
Mandatory Relief.
Thus, the Commission (standing in the shoes of the Appeal Board) may proceed to decide the merits of Intervenors' mandamus petitions and the question certified by ALAB-92 2.
The Commission is not free, however, to take any other appellate steps which would interfere with the merits of Intervenors' appeal of the November 9 action before the Court of Appeals.
Commission decision on the mandamus petitions will y
either moot Intervenors' court case (if they prevail) or permit them to return to the Court in the mandamus posture with the t.
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l legal merits of their mandamus claims unaffected.
On the other j
hand,. review and reversal by the Commission of ALAB-924's remand to the Licensing Board obviously affects the merits of Intervenors' court case.
For this reason the Commission is not presently free to proceed with such merits review.A/
So that there can be no mistake whatever concerning the Intervenors' present position on Commission review of ALAB-924 in light of this present request for a briefing opportunity, Intervenors set out the four possible courses of action that the Commission may take in this regard and their planned response to each:
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1/
The position of the Commission vis-a-vis the November 9
" final agency' action" is essentially no different than the position of the Licensing Board.
San Intervanors' (Mass AG and NECNP) February 1 Response to (Smith) Board Order of January 11, 1990 at 3-5 (noting that Board is not now free to hold cost facto hearings, unlawfully denied earlier, thereby potentially mooting Intervenors' claims of error in case now before Court of Appeals).
Similarly, the Commission is not now free to reverse ALAB-924, thereby "fix" the Smith Board's unlawful action and potentially moot Intervenors' mandamus petition.
Just as the Licensing Board can not fix its November 9 action with new facts, the Commission can not repair the problem with new law.
Even were the Commission to grant an administrative stay and then argue to the Court of Appeals that Court review be deferred on the merits because the Commission intends to complete further intra-agency merits-review before lifting the immediate effectiveness stay, there would be no
. reason for further delay in deciding Intervenors' mandamus petitions.
The Smith-Board's action on November 9, 1989 will always be a legal nullity if it clearly violated ALAB-924, which it obviously did, even if at some later time ALAB-924 is itself reversed..
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The commission can grant the Intervenors' pending mandamus motions and revoke the license thereby terminating the jurisdiction of the Court of Appeals.
As a consequence, the Commission would then be free to grant any pending Petitions for Review of ALAB-924.
Intervenors' present request for an opportunity to file briefs is premised on this commission course of action.
i 2.
The commission may deny Intervenors' pending mandamus motions without reversing or otherwise affecting the correctness of ALAB-924.
3.
Before ruling on the mandamus motions, the commission l
could issue an order granting Applicants' now pending Petition for Review of ALAB-924 and, in accordance with regulations and commission practice, issue a briefing schedule.
In response, l
i the Intervenors would seek to enjoin such further merits review
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on the grounds that such action will affect the merits of Intervenors' pending case before the Court of Appeals.
4.
At the saS9 Sime and in the same order, the commission
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could grant the Applicants' Petition for Review, reverse ALAB-924 on the merits and then deny Intervanors' mandamus motions as moot.
In response, the Intervenors would renew their mandamus remedy in the court of Appeals on the grounds that:
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the Commission's further merits review of ALAB-924 should' be disregarded as beyond its jurisdiction and as simply a nost facto "fix" of the Smith Board's action by I
which the commission tacitly acknowledges the merits of f
Intervenors' mandamus motions; and b.
the commission denied Intervenors an opportunity to be-heard on appeal of ALAB-924.
t REQUEST _FOR SHORT HOUSEKEEPING STAY EIn light of the circumstances of this case, including:
i a.
the procedural and substantive complexity of the issues; b.
the pendency of Intervenors' merits case before the court of Appeals; t
c.
the public interest in a full and fair l
opportunity for' Intervenors to obtain emergency relief in some form from the court of Appeals; I
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the absence of any harm to any party in a further very short delay in operations in light of the extent of delay to date due to emergency planning issues; and-t i
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the technical and financial concerns raised if operations were to begin in the absence of a commission stay, and than within a short period of time the court were to grant its own stay;
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the Intervenors request that in the event the Commission I
decides to lift the immediata effectiveness stay that a further housekeeping stay of 30 days be granted in which Intervenors may seek emergency relief including mandamus from the Court of i
Appeals.
Respectfully submitted, COMMONWEALTH OF MASSACHUSETTS NEW ENGLAND COALITION ON JAMES M. SHANNON NUCLEAR POWER ATTORNEY GENERAL
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Diane Curran, Esq. ' '
n Traficonto I
Harmon, curran, & Towsley lef, Nuclear Safety Unit Suite 430 One Ashburton Place i
2001 S Street, N.W.
Boston, MA 02108 Washington, DC 20008 (617) 727-2200 SEACOAST ANTI-POLLUTION LEAGUE
'RL+ Murrj Rob'ert Backus, Esq.
Backus, Meyer, & Solomon 116 Lowell Street P.O.
Box 516 Manchester, NH 03106 Dated:
February 8, 1990
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1 CDChETED UNITED STATES OF AMERICA USNRC NUCLIAR REGULATORY COMMISSION Before the Commission:
30 Rm -9 P3 :43 i
Kenneth~M. Carr, Chairman VTICE OF SECRETARY Thomas M. Roberts, Commissioner t DCMCitNG & SEi<vlCE i
Kenneth C. Rogers, Commissioner BRANCH
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In the Matter of
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Docket Nos. 50-443-OL
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50-444-OL PUBLIC' SERVICE COMPANY
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(Emergency Planning Issues)
OF NEW HAMPSHIRE, ET AL.
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(Seabrook Station, Units 1 and 2)
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February 8, 1990 i
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o CERTIFICATE OF SERVICE r
j I, John Traficonte, hereby certify that on February 8, 1990, I made service of the within "INTSRVENORS' REQUEST FOR AN OPPORTUNITY TO BRIEF ALAB-924 IN THE EVENT THE COMMISSION DECIDES TO REVIEW IT AND FOR A HOUSEKEEPING STAY" by Federal Express as indicated by (*)
and by first class mail to the following parties:
r Ivan W. Smith, Chairman Kenneth A. McCollom Atomic Safety & Licensing Board 1107 W.
Knapp St.
U.S. Nuclear Regulatory Commission Stillwater, OK 74075 l
East West Towers Building 4350 East Weat Highway Bethesda, MD 20814 I
Dr. Richard F. Cole Robert R. Pierce, Esq.
l' Atomic Safety & Licensing Board Atomic Safety & Licensing Board U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission East West Towers Building East West Towers Building 4350 East West Highway 4350 East West Highway a
Bethesda, MD 20814 Bethesda, MD 20814
- Docketing and Service Thomas G. Dignan, Jr.1/
U.S. Nuclear Regulatory Commission Ropes & Gray Washington, DC 20555 One International Place Boston, MA 02110 1/ Served by first class mail and telefax on February 8, 1990.
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eMarjorie Nordlinger, Esq.
Paul McEachern, Esq.
U.S. Nuclear Regulatory Commission Shaines & McEachern l
Office of the General Counsel 25 Maplewood Avenue 11555 Rockville Pike, 15th Floor P.O.
Box 360 Rockville, MD 20852 Portsmouth, NH 03801 l
H. Joseph Flynn, Esq.
Atomic Safety & Licensing Assistant General Counsel Appeal Board Office of General Counsel U.S. Nuclear Regulatory Commission i
Federal Emergency Management Washington, DC 20555 Agency 500 C Street, S.W.
Washington, DC 20472 Robert A.
Backus, Esq.
Atomic Safety & Licensing Board Backus, Meyer & Solomon.
U.S. Nuclear Regulatory Commission 116 Lowell Street Washington, DC 20555 P.O.
Box 516 Manchester, NH 03106 Jane Doughty Diane Curran, Esq.
Seacoast Anti-Pollution League Harmon, Curran & Towsley Five Market Street Suite 430 Portsmouth, NH 03801 2001 S Street, N.W.
Washington, DC 20008 Barbara St. Andre, Esq.
Judith Mizner, Esq.
Kopelman & Paige, P.C.
79 State Street 77 Franklin Street Second Floor 1
Boston, MA 02110 Newburyport, MA 01950 Charles P. Graham, Esq.
R.
Scott Hill-Whilton, Esq.
Murphy & Graham Lagoulis, Hill-Whilton & Rotondi 33 Low Street 79 State Street Newburyport, MA 01950 Newburyport, MA 01950 Ashod N. Amirian, Esq.
Senator Gordon J. Humphrey 145 South Main Street U.S. Senate P.O.
Box 38 Washington, DC 20510 Bradford, MA 01835 (Attn:
Tom Burack)
Senator Gordon J. Humphrey John P. Arnold, Attorney General One Eagle Square, Suite 507 Office of the Attorney General Concord, NH 03301 25 Capitol Street (Attn:
Herb Boynton)
Concord, NH 03301 Phillip Ahrens, Esq.
William S.
Lord Assistant Attorney General Board of Selectmen Department of the Attorney General Town Hall - Friend Street Augusta, ME 04333 Amesbury, MA 01913 i
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Paul Bollwerk, III, Chairman Alan S. Rosenthal Atomic Safety & Licensing Atomic Safety & Licensing Appeal Board Appeal Board U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission East West Towers Building East West Towers Building j
4350 East West Highway 4350 East West Highway Bethesda, MD 20814 Bethesda, MD 20814 Howard A. Wilber
- Kenneth M. Carr Atomic Safety & Licensing Chairman Appeal Board U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission 11555 Rockville Pike East West Towers Building Rockville, MD 20852 4350 East West Highway Bethesda, MD 20814
- Thomas M. Roberts, Commissioner
- Kenneth C.
Rogers, Commissioner U.S. Nuclear Regulatory Cornission U.S. Nuclear Regulatory Commission 11555 Rockville Pike 11555 Rockville Pike Rockville, MD 20852 Rockville, MD 20852 Jack Dolan Federal Emergency Management Agency Region 1 J.W. McCormack Post Office &
Courthouse Building, Room 442 Boston, MA 02109 George Iverson, Director
- Edwin Reis, Esquire N.H. Office of Emergency Manacement U.S. Nuclear Regulhtory Commission l
State House Office Park South Office of General Counsel 107 Pleasant Street 11555 Rockville Pike 15th Floor Concord, NH 03301 Rockville, MD 20852 Respectfully submitted, JAMES M. SRANNON ATTORNEY GENERAL dohn Trafico'nte Assistant Attorney General vthief, Nuclear Safety Unit Department of the Attorney General One Ashburton Place Boston, MA 02108 (617) 727-2200 Dated:
February 8, 1990